Radiocommunications (Spectrum Licence Allocation – 850/900 MHz Band) Determination 2021 (Cth)
Radiocommunications (Spectrum Licence Allocation – 850/900 MHz Band) Determination 2021
The Australian Communications and Media Authority makes the following determination under section 60 and section 294 of the Radiocommunications Act 1992.
Dated: 19 August 2021
Chris Jose
[signed]
Member
Linda Caruso
[signed]
Member/General Manager
Australian Communications and Media Authority
Contents
Part 1—Preliminary
1 Name
2 Commencement
3 Authority
4 Interpretation
5 Lots and products
6 References to other instruments
7 Giving documents to the ACMA
8 Statutory declaration for body corporate
9 Signing or executing documents other than deeds and statutory declarations
10 Payments of amounts
11 Giving documents to bidders
Part 2—General limits on allocation of spectrum
Division 1 General allocation limits
12 Interpretation
13 Meaning of allocation limits
14 Allocation limits
Division 2 Associates, relevant group of persons and affiliations
15 Meaning of associate and relevant group of persons
16 Affiliation between applicants or bidders
17 Information relevant to considering whether applicants or bidders are affiliated
Part 3—Confidentiality
18 Meaning of confidential information
19 Obligation not to disclose confidential information
20 Duration of confidentiality obligation
21 Reporting breach of confidentiality
22 Notice of breach of confidentiality
23 Deed of confidentiality required from related persons and contractors
Part 4—Procedures before auction
Division 1 Preliminary
24 Auction manager
25 Application fee
26 Application fee not refundable except in certain circumstances
27 Application deadline and eligibility deadline
28 Starting prices, lot ratings and forms
Division 2 Advertising the auction
29 Notice advertising auction
30 Applicant information package
Division 3 Application to participate in the auction
31 Making an application
32 Initial auction information provided to applicants
33 Provisional start demand validity rules for application
34 Applicants to notify the ACMA if application information incorrect
35 Applicant to make statutory declaration
36 Failure to give statutory declaration
37 Procedure if ACMA satisfied applicants are affiliated
38 Requirements for new application
39 Initial auction information provided to new applicants
40 Compliance or non-compliance with allocation limits procedures – effect on supply of 900 upper products
Division 4 Maximum eligibility points, provisional minimum spectrum requirements and securing eligibility points
41 Maximum eligibility points and provisional minimum spectrum requirements
42 Eligibility payment or deed of financial security required for maximum eligibility points
Division 5 Changes to starting prices, and related matters
43 Varying starting prices, lot ratings and set-aside prices, and setting new deadlines
44 Notice of updated documents
45 Giving replacement application form
46 Updating eligibility nomination form and financial security
47 Notice inviting new applicants to the auction
48 Making an application – new applicants to the auction
49 Initial auction information provided to new applicants when starting prices changed
50 Statutory declarations and affiliations – where there are new applicants to the auction
51 Changes to applicants as a result of this Division – effect on supply of 900 upper products
Division 6 Withdrawal of applications
52 Withdrawal of application
Division 7 Registration of bidders
53 Register of bidders
54 Registration process
55 Bidders to notify the ACMA if register incorrect
Division 8 Preparation for bidding and scheduling rounds of the auction
56 Preparation for bidding
57 Security of the auction
58 Auction rounds
59 Pre-bidding phase and first clock round
Part 5—Auction procedures, and allocation of set-aside lots
Division 1 Procedures to be applied for auction and allocation of set-aside lots
60 Auction stages
61 Procedures if only one bidder
62 Procedures in relation to set-aside lots
63 Rounds of the auction
64 Auction manager’s discretion to accept entries and bids
65 Action that auction manager may take in exceptional circumstances
Division 2 Affiliations during the auction
66 Affiliation between bidders during auction period not permitted
67 Requirement to report affiliation
68 Auction continues despite possible affiliation
69 Consideration of affiliation
Division 3 Statement by primary winners, secondary winners and set-aside participants about affiliations
70 Primary winners, secondary winners and set-aside participants to make statement about affiliations
71 Notification of affiliation
72 Consequence of affiliation
Part 6—Procedures after auction
Division 1 Notices and refunds to withdrawn applicants and unsuccessful bidders
73 Notice and refunds to withdrawn applicants
74 Notice and refunds to unsuccessful bidders
Division 2 Winning prices, payment and issue of spectrum licences
75 Winning price and balance of winning price
76 Results of the auction
77 Sufficient eligibility payment – issue of spectrum licence without further payment
78 Payment of balance of winning price
79 Publication of auction results
Part 7—Miscellaneous
80 Unallocated spectrum
81 Applicants and bidders must not misuse auction system
82 The ACMA may obtain information from applicants and bidders
83 Use of information and documents by the ACMA
84 The ACMA to provide information to ACCC on request
85 Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures
86 Effect of retention on winning bidders
87 Application to Federal Court for return of retained amount
88 No liability of the ACMA, etc
89 Other rights not affected
90 Auction manager may delegate functions and powers
Schedule 1─Allocation of set-aside lots for set-aside prices
1 Application of Schedule
2 Allocation of set-aside lots
Schedule 2─Rules for the primary stage of the auction
Part 1 Application and interpretation
1 Application of Schedule
2 Interpretation
Part 2 Processing of bids
2A Processing algorithm
2B Applying an increase bid
2C Applying a decrease bid
2D Applying a maintain bid
Part 3 Arrangements for primary stage
3 Entries in the auction system before the first clock round – pre-bidding phase
4 Setting bid increment percentage and eligibility requirement percentage
5 Schedule for clock rounds
6 Recess days
7 Clock rounds
8 Information available for clock rounds of the primary stage
9 Changing bid increment percentage
10 Changing eligibility requirement percentage
Part 4 Bidding in the primary stage
11 Definitions
12 Eligibility points
13 Reduction in eligibility points
14 Clock round bids
15 Validity of bids
Part 5 Determining the primary winners and primary prices
16 End of clock rounds
17 Determination of primary winners and primary prices
Part 6 Bringing the primary stage to an end
18 Results of the primary stage
19 End of the primary stage
Schedule 3─Rules for the secondary stage of the auction
Part 1 Application and interpretation
1 Application of Schedule
2 Bidders to choose between products
3 Interpretation
Part 2 Arrangements for secondary stage
4 Schedule for rounds of the secondary stage and setting bid increment percentage
5 Rounds of the secondary stage
6 Information available during the secondary stage
7 Recess days
Part 3 Bidding in the secondary stage
8 When a bidder cannot make a bid on a lot
9 Starting price and specified price
10 Changing bid increment percentage
11 General rules about bidding
12 Continue bid made at or greater than specified price
13 Validity of bids
14 Exit bids – exclusion from further participation
Part 4 Determining the secondary winners and secondary prices
15 Final round for bids on a lot, final round of the secondary stage, secondary winners and final high bid
16 Tiebreaker for a lot
Part 5 Bringing the secondary stage to an end
17 End of rounds of the secondary stage
18 Determination of secondary prices
19 Results of the secondary stage
20 End of the secondary stage
Schedule 4─Rules for the assignment stage of the auction
Part 1 Application and interpretation
1 Application of Schedule
2 Interpretation
Part 2 Arrangements for assignment stage
3 Schedule for assignment rounds
Part 3 Bidding in the assignment stage
4 Frequency range options in assignment rounds
5 Assignment bids
6 Validity of assignment bids
Part 4 Determining winning assignment bids and assignment prices
7 Determination of winning assignment bids
8 Assignment of frequencies and determination of assignment prices
9 Assignment of frequencies for 900 lower products
Part 5 Allocation of downshift spectrum
10 Allocation of downshift spectrum
11 Downshift spectrum not allocated
Part 6 Bringing the assignment stage to an end
12 Results of the assignment stage
13 End of the assignment stage
Schedule 5─Payment of balance of the winning price greater than zero, and issue of spectrum licences
Part 1 Application and interpretation
1 Application of Schedule
2 Interpretation
Part 2 Payment of winning price
3 Payment of balance of winning price
Part 3 Issue of spectrum licences
4 Issue of spectrum licences
5 Default
Part 1—Preliminary
1 Name
This is the Radiocommunications (Spectrum Licence Allocation – 850/900 MHz Band) Determination 2021.
2 Commencement
This instrument commences on the day after the day it is registered on the Federal Register of Legislation.
Note: The Federal Register of Legislation may be accessed, free of charge, at Authority
This instrument is made under section 60 and section 294 of the Radiocommunications Act 1992.
Note 1: To the extent this instrument is made under subsection 60(1) of the Act, it is not disallowable under section 42 of the Legislation Act 2003 (see paragraph 44(2)(b) of the Legislation Act 2003 and item 29 in the table set out in regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). To the extent that this instrument is made under subsection 294(1) of the Act, it is disallowable.
Note 2: The following provisions of this instrument are made under subsection 294(1) of the Act, and all other provisions are made under subsection 60(1) of the Act:
(a) section 10;
(b) paragraph 28(1)(a);
(c) paragraph 28(1)(c);
(d) subsection 28(2);
(e) paragraph 43(1)(a);
(f) paragraph 43(1)(c);
(g) subsection 43(2);
(h) Division 2 of Part 6;
(i) clause 17 of Schedule 2;
(j) clause 18 of Schedule 3;
(k) clause 7 of Schedule 4;
(l) clause 8 of Schedule 4;
(m) paragraph 9(c) of Schedule 4;
(n) Schedule 5.
4Interpretation
(1) In this instrument, unless the contrary intention appears:
850/900 MHz band means the following parts of the spectrum:
(a) 814 MHz to 825 MHz;
(b) 859 MHz to 870 MHz;
(c) 890 MHz to 915 MHz;
(d) 935 MHz to 960 MHz.
Note: For the parts of the 850/900 MHz band consisting of 824 MHz to 825 MHz and 869 MHz to 870 MHz, see clauses 10 and 11 of Schedule 4.
850 major population product has the same meaning as in subsection 5(1) of the marketing plan.
850 regional product has the same meaning as in subsection 5(1) of the marketing plan.
900 lower major population product has the same meaning as in subsection 5(1) of the marketing plan.
900 lower product: see subsection 5(6).
900 lower regional product has the same meaning as in subsection 5(1) of the marketing plan.
900 upper major population product has the same meaning as in subsection 5(1) of the marketing plan.
900 upper product: see subsection 5(7).
900 upper regional product has the same meaning as in subsection 5(1) of the marketing plan.
ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
ACMA Act means the Australian Communications and Media Authority Act 2005.
ACMA staff has the meaning given by section 3 of the ACMA Act.
ACN has the meaning given by section 9 of the Corporations Act 2001.
Act means the Radiocommunications Act 1992.
affiliated: see section 16.
allocated means:
(a) for a lot of a product, other than a set-aside lot – allocated as a result of the primary stage or secondary stage; or
(b) for a set-aside lot – allocated as a result of the procedures in Schedule 1; or
(c) for the downshift metropolitan lot and the downshift regional lot – allocated as a result of clause 10 of Schedule 4.
allocation limits: see sections 13 and 14.
applicant means a person who has applied to become registered as a bidder.
Note: A person may apply under section 31, section 38 or section 48.
applicant information package: see subsection 30(1).
application deadline: see subsection 27(1).
application fee: see section 25.
application form: see paragraph 28(3)(a).
ARBN has the meaning given by section 9 of the Corporations Act 2001.
assignment bid: see subclauses 5(1), 5(5) and 5(6) of Schedule 4.
assignment price: see subclauses 8(2) and 8(3), and paragraph 9(c), of Schedule 4.
assignment round: see clause 2 of Schedule 4.
assignment stage means the part of the auction:
(a) commencing at the start of the first assignment round; and
(b) ending immediately after the auction manager provides the results for every assignment round in accordance with clauses 12 and 13 of Schedule 4.
Note: The assignment stage also deals with the allocation of the downshift metropolitan lot and the downshift regional lot.
assignment winner: see subclause 8(8) and paragraph 9(b) of Schedule 4.
associate: see subsection 15(1).
auction means the auction of lots held in accordance with this instrument, and includes the allocation (if any) of set-aside lots, the downshift metropolitan lot and the downshift regional lot.
auction manager: see section 24.
auction period means the period:
(a) commencing on the eligibility deadline; and
(b) ending immediately after the auction manager provides the results for the auction in accordance with section 76.
auction system means the system the ACMA makes available to bidders to participate in the auction.
balance of the winning price: see subsection 75(2).
bid:
(a) in a clock round for the primary stage – see subclause 2(1) of Schedule 2; or
(b) in a round for the secondary stage – see subclause 3(1) of Schedule 3; or
(c) in an assignment round for the assignment stage – means an assignment bid.
bidder means a person registered by the ACMA as a bidder under section 54.
clock round: see subsection 2(1) of Schedule 2.
confidential information: see section 18.
deed of acknowledgement means a deed of acknowledgement form that has been completed and executed by an applicant as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.
Note: Strict compliance with the form is required.
deed of acknowledgement form: see paragraph 28(3)(b).
deed of confidentiality means a deed of confidentiality form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.
Note: Strict compliance with the form is required.
deed of confidentiality form: see paragraph 28(3)(d).
deed of financial security means a deed of financial security form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.
deed of financial security form: see paragraph 28(3)(c).
downshift metropolitan lot has the meaning given by subsection 5(1) of the marketing plan.
downshift regional lot has the meaning given by subsection 5(1) of the marketing plan.
eligibility deadline: see subsection 27(2) and paragraph 40(9)(a).
eligibility nomination form: see paragraphs 31(5)(a) and 41(9)(b).
eligibility payment: see section 42 and subsection 46(4).
eligibility points: see subclause 12(1) of Schedule 2.
entry, during the pre-bidding phase, means an entry in the auction system made by a bidder under subclause 3(3) of Schedule 2.
extended eligibility deadline: see paragraphs 43(3)(b) and 51(11)(a).
final clock round: see clause 16 of Schedule 2.
lot: see subsection 5(1).
lot rating: see paragraphs 28(1)(b) and 43(1)(b).
major population product: see subsection 5(4).
marketing plan means the Radiocommunications Spectrum Marketing Plan (850/900 MHz Band) 2021.
maximum eligibility points:
(a) for an applicant – means the number of eligibility points specified in an eligibility nomination form or updated eligibility nomination form, in accordance with subsection 41(1); or
(b) for a bidder – means the maximum number of eligibility points secured by the bidder under section 42.
minimum spectrum requirement: see subsection (3).
new applicant:
(a) for sections 38 and 39 – see subsection 38(1); or
(b) for sections 48, 49 and 50 – see subsection 48(1).
new application deadline: see paragraph 43(3)(a).
posted demand: see subclause 2(1) of Schedule 2.
pre-bidding phase: see paragraph 59(1)(b).
primary price: see subclause 17(3) of Schedule 2.
primary stage means the part of the auction:
(a) commencing at the start of the pre-bidding phase; and
(b) ending immediately after the auction manager provides the results for the final clock round in accordance with clauses 18 and 19 of Schedule 2.
primary winner: see subclause 17(1) of Schedule 2.
product: see subsection 5(2).
provisional minimum spectrum requirement: see subsection (4).
provisional start demand, of an applicant for lots of a product, means the number of lots of the product specified by the applicant in a completed eligibility nomination form or completed updated eligibility nomination form in accordance with any of the following:
(a) subparagraph 31(7)(a)(i);
(b) paragraph 38(7)(a);
(c) paragraph 46(2)(a);
(d) subparagraph 48(4)(a)(i).
pseudorandom means using computer-generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.
re-allocation declaration means the Radiocommunications (Spectrum Re-allocation─850/900 MHz Band) Declaration 2020.
regional product: see subsection 5(5).
register means the register of bidders maintained by the ACMA under section 53.
related body corporate has the same meaning as in the Corporations Act 2001.
related person, in relation to an applicant or bidder that is a body corporate, means any of the following:
(a) a director or secretary of the applicant or bidder;
(b) an employee of the applicant or bidder;
(c) an employee of a related body corporate that provides services to the applicant or bidder.
relevant associate has the same meaning as in subsection 4(1) of the spectrum licence limits direction.
relevant group of persons: see subsections 15(4) and 15(5).
residual lot: see subclause 1(1) of Schedule 3.
round: for the secondary stage, see subclause 3(1) of Schedule 3.
secondary price: see subclause 18(3) of Schedule 3.
secondary stage means the rounds of the auction:
(a) commencing with the first round for a residual lot of a product; and
(b) ending immediately after the auction manager provides the results for the final round of the secondary stage in accordance with clauses 19 and 20 of Schedule 3.
secondary winner: see subclauses 15(4) and 16(2) of Schedule 3.
set-aside applicant means any of the following:
(a) one of:
(i) Optus Mobile Pty Limited (ACN 054 365 696) (Optus); or
(ii) a relevant associate of Optus;
(b) one of:
(i) TPG Telecom Limited (ACN 096 304 620) (TPG); or
(ii) a relevant associate of TPG.
set-aside lot: see clause 2 of Schedule 1.
set-aside participant: see subsection (2).
set-aside price: see paragraph 28(1)(c) and paragraph 43(1)(c).
size: see subsection 5(3).
spectrum licence limits direction means the Radiocommunications (Spectrum Licence Limits – 850/900 MHz Band) Direction 2021.
start demand: see subclause 2(1) of Schedule 2.
starting price: see paragraph 28(1)(a) and paragraph 43(1)(a).
supply: see subclause 2(1) of Schedule 2.
total assignment price: see subclause 8(9) of Schedule 4.
total size: see paragraph 5(3)(b).
updated eligibility nomination form: see subsection 43(6) and paragraph 51(11)(b).
varied eligibility deadline: see subsection 40(3).
varied eligibility nomination form: see paragraph 40(7)(a).
varied extended eligibility deadline: see subsection 51(6).
varied updated eligibility nomination form: see paragraph 51(9)(a).
winning bidder means any of the following:
(a) a primary winner;
(b) a secondary winner;
(c) a set-aside participant;
who has frequency ranges assigned to lots of a product at the end of the assignment stage.
winning price: see subsection 75(1).
working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory, New South Wales or Victoria.
Note: A number of other expressions used in this instrument are defined in the Act, including the following:
(a) ACCC;
(b) ACMA;
(c) frequency band;
(d) licence;
(e) radiocommunications device;
(f) spectrum;
(g) spectrum licence.
In this instrument, register has a different meaning to that given to Register by section 5 of the Act.
(2) In this instrument, the following provisions determine whether a person is, or whether no person is, a set-aside participant:
(a) paragraph 31(3)(b);
(b) paragraph 31(4)(b);
(c) paragraph 38(5)(d);
(d) subsection 40(5);
(e) paragraph 40(6)(c);
(f) subsection 45(2);
(g) subsection 45(3);
(h) paragraph 48(2)(b);
(i) paragraph 51(8)(f);
(j) paragraph 52(7)(a);
(k) subparagraph 52(7)(b)(iii).
(3) In this instrument:
(a) for a set-aside participant, the minimum spectrum requirement, in relation to lots of a product other than:
(i) a 900 upper product; or
(ii) a 900 lower product;
means the number of lots of the product entered by, or taken to be entered by, the participant as its minimum requirement in the pre-bidding phase of the primary stage in accordance with paragraph 3(3)(b) of Schedule 2; or
(b) for any other bidder, the minimum spectrum requirement, in relation to lots of a product other than a 900 lower product, means the number of lots of the product entered by, or taken to be entered by, the bidder as its minimum requirement in the pre-bidding phase of the primary stage in accordance with paragraph 3(3)(b) of Schedule 2.
Note 1: No bidder may select a minimum spectrum requirement for a 900 lower product.
Note 2: No set-aside participant may select a minimum spectrum requirement for a 900 upper product.
Note 3: The only number of lots that may be selected as a minimum spectrum requirement for a product is 2 lots.
(4) In this instrument:
(a) for a set-aside participant, the provisional minimum spectrum requirement in relation to lots of a product other than:
(i) a 900 upper product; or
(ii) a 900 lower product;
means the number of lots of the product selected by the participant as its minimum requirement in a completed eligibility nomination form in accordance with any of the following:
(iii) subparagraph 31(7)(a)(iii);
(iv) paragraph 38(7)(a);
(v) paragraph 46(2)(c);
(vi) subparagraph 48(4)(a)(iii); or
(b) for any other applicant, the provisional minimum spectrum requirement in relation to lots of a product other than a 900 lower product, means the number of lots of the product selected by the applicant as its minimum requirement in a completed eligibility nomination form in accordance with any of the following:
(i) subparagraph 31(7)(a)(iii);
(ii) paragraph 38(7)(a);
(iii) paragraph 46(2)(c);
(iv) subparagraph 48(4)(a)(iii).
Note 1: No applicant may select a provisional minimum spectrum requirement for a 900 lower product.
Note 2: No set-aside participant may select a provisional minimum spectrum requirement for a 900 upper product.
Note 3: The only number of lots that may be selected as a provisional minimum spectrum requirement for a product is 2 lots.
(5) In this instrument, a reference to a part of the spectrum, a frequency band or a frequency range includes all frequencies that are greater than but not including the lower frequency, up to and including the higher frequency.
Note: This means the lower number in the reference to a part of the spectrum, a frequency band or a frequency range is not included in the part of the spectrum, the frequency band or the frequency range.
(6) In this instrument, a reference to time is a reference to the legal time in the Australian Capital Territory.
5 Lots and products
(1) In this instrument, unless the contrary intention appears, lot, other than in relation to the downshift metropolitan lot and the downshift regional lot, means a unit of a product that is available in the auction.
(2) In this instrument, unless the contrary intention appears, each of the following is a product:
(a) the 850 major population product;
(b) the 850 regional product;
(c) the 900 lower major population product;
(d) the 900 lower regional product;
(e) the 900 upper major population product;
(f) the 900 upper regional product.
Note 1: In accordance with the marketing plan, there are 2 lots of the 850 major population product, 2 lots of the 850 regional product, 1 lot of the 900 lower major population product, 1 lot of the 900 lower regional product, 4 lots of the 900 upper major population product and 4 lots of the 900 upper regional product.
Note 2: However, there may be fewer than 4 lots of the 900 upper major population product and fewer than 4 lots of the 900 upper regional product available in the primary stage: see Schedules 1 and 2.
(3) In this instrument:
(a) the size of each lot of a product, when expressed in MHz, is the lot bandwidth set out for the product in subsection 10(6) of the marketing plan; and
(b) the size or total size of lots of a product, when expressed in MHz, is the total lot bandwidth of those lots; and
(c) the size of each of the downshift metropolitan lot and the downshift regional lot, when expressed in MHz, is the lot bandwidth set out for that lot in subsection 10(6) of the marketing plan.
Note 1: In accordance with the marketing plan, the size of a single lot of each product is 2 x 5 MHz (or 10 MHz).
Note 2: In accordance with the marketing plan, the size of each of the downshift metropolitan lot and the downshift regional lot is 2 x 1 MHz (or 2 MHz).
(4) In this instrument, unless the contrary intention appears, each of the following is a major population product:
(a) the 850 major population product;
(b) the 900 lower major population product;
(c) the 900 upper major population product.
(5) In this instrument, unless the contrary intention appears, each of the following is a regional product:
(a) the 850 regional product;
(b) the 900 lower regional product;
(c) the 900 upper regional product.
(6) In this instrument, unless the contrary intention appears, each of the following is a 900 lower product:
(a) the 900 lower major population product;
(b) the 900 lower regional product.
(7) In this instrument, unless the contrary intention appears, each of the following is a 900 upper product:
(a) the 900 upper major population product;
(b) the 900 upper regional product.
6 References to other instruments
In this instrument, unless the contrary intention appears:
(a) a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
(b) a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force or existing from time to time.
Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.
Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.
Note 3: See section 314A of the Act.
7 Giving documents to the ACMA
(1) A document may be given to the ACMA under this instrument by:
(a) delivering the document to the physical address specified in the applicant information package; or
(b) emailing the document, in accordance with subsection (2), to the email address specified in the applicant information package.
Note: Subsections 31(10), 38(8), 46(5) and 48(7) have additional requirements for a deed of financial security given by email.
(2) If a document is emailed:
(a) the document must be included as an attachment; and
(b) the document must be:
(i) if the document is a statutory declaration, statement under section 70 or deed – in a PDF format or another format approved by the auction manager; or
(ii) for any other document – in a Word or PDF format, or another format approved by the auction manager.
(3) The auction manager may approve a format for documents for the purposes of either or both subparagraphs (2)(b)(i) and (ii).
(4) A deed of financial security may be given to the ACMA under this instrument as one or more deeds of financial security.
(5) If more than one deed of financial security is given to the ACMA for the purposes of a single applicant or bidder, each such deed of financial security must be given a unique identifier.
(6) If a deed of financial security is given to the ACMA under this instrument, it is given to the ACMA on behalf of the Commonwealth.
8 Statutory declaration for body corporate
If this instrument requires a body corporate to make a statutory declaration, the statutory declaration must be made by a director or secretary of the body corporate.
9 Signing or executing documents other than deeds and statutory declarations
(1) If:
(a) this instrument permits or requires a person to give the ACMA or the auction manager a document; and
(b) that document is required to be signed or executed; and
(c) the document is not required to be made as a statutory declaration or executed as a deed;
then, unless the contrary intention appears, the document may be signed or executed electronically.
(2) If:
(a) this instrument permits or requires a person to give the ACMA or the auction manager a document; and
(b) that document is not a statutory declaration or a deed; and
(c) that document is required to be signed or executed; and
(d) the signature or execution is required to be witnessed;
then, unless the contrary intention appears, the signature or execution may be witnessed by audio-visual link, if the person witnessing the signature or execution (witness):
(e) observes the person signing or executing the document (signatory) doing so in real time; and
(f) confirms the signature or execution was witnessed by signing the document or a copy of the document; and
(g) is reasonably satisfied that the document the witness signs is the same document, or a copy of the document, signed or executed by the signatory; and
(h) endorses the document, or the copy of the document, with a statement specifying the method used to witness the signature or execution of the signatory.
Note: Other Commonwealth legislation, and State and Territory legislation, may allow for deeds or statutory declarations to be signed or executed electronically, or for the signature or execution of deeds or statutory declarations to be witnessed by audio-visual link or by other means.
10 Payments of amounts
(1) Except where otherwise specified, this section applies to all amounts paid, or to be paid, to the ACMA under this instrument.
(2) The amount must be paid in Australian currency.
(3) The amount must be paid by bank cheque or electronic transfer.
(4) An amount that is paid by electronic transfer must be made by any of the following methods:
(a) direct transfer into the bank account that has the following details:
(i) Bank – ANZ Bank;
(ii) Branch – Belconnen;
(iii) BSB number – 012-951;
(iv) Account number – 8379 24272;
(v) Account name – ACMA Official Administered Receipts;
(b) for a winning bidder’s balance of the winning price – BPAY payment:
(i) only if, under Schedule 5, a winning bidder has been notified by the ACMA of the bidder’s balance of the winning price; and
(ii) using the electronic payment scheme called BPAY, operated in co-operation between Australian financial institutions, which enables a person to make a payment as a participant in BPAY, either via telephone or internet access;
(c) for a winning bidder’s balance of the winning price – credit card payment:
(i) only if, under Schedule 5, a winning bidder has been notified by the ACMA of the bidder’s balance of the winning price; and
(ii) into the bank account with the details set out in paragraph (a).
(5) An amount is taken to have been paid by a deadline specified in this instrument if:
(a) the ACMA receives a bank cheque for that amount on or before the deadline; or
(b) both:
(i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the deadline (such as a transfer receipt); and
(ii) the amount is received in the ACMA’s bank account no later than 3 working days after the deadline; or
(c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the deadline.
(6) An amount due under this instrument is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount due.
Note: The effect of subsection (6) is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.
(7) If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.
(8) If an amount is paid, or is to be paid, to the ACMA under this instrument, it is paid, or it is to be paid, to the ACMA on behalf of the Commonwealth.
(9) If an amount is paid, or is to be paid, by the ACMA under this instrument, it is paid, or it is to be paid, by the ACMA on behalf of the Commonwealth.
Note: This section also applies to spectrum access charges payable under section 294 of the Act. As such, this section relates to Division 2 of Part 6 of this instrument and is disallowable under section 42 of the Legislation Act 2003.
11 Giving documents to bidders
(1) If a provision in this instrument requires, authorises or permits the auction manager to give information to a bidder, or to notify or tell a bidder of a matter, whether or not in writing, the auction manager may give the information to the bidder, or notify or tell the bidder of the matter, by using the auction system.
(2) Subsection (1) does not limit any provision of this instrument, and the auction manager is not obliged to give information to a bidder, or notify or tell a bidder of a matter, by using the auction system.
Part 2—General limits on allocation of spectrum
Division 1 General allocation limits
12 Interpretation
In this Part:
800 MHz band means the following parts of the spectrum:
(a) 825 MHz to 845 MHz;
(b) 870 MHz to 890 MHz.
carrier has the same meaning as in the Telecommunications Act 1997.
major population area has the meaning given by subsection 5(1) of the marketing plan.
public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
regional area has the meaning given by subsection 5(1) of the marketing plan.
relevant spectrum licence means a spectrum licence in the 800 MHz band that is in force immediately before the application deadline.
roaming services agreement means an agreement between two or more carriers for the principal purpose of enabling the supply of public mobile telecommunications services by one of those other carriers, in geographic locations where another of those carrier’s public mobile telecommunications services are not available.
sub-1 GHz band means the part of the spectrum up to 1 GHz.
13 Meaning of allocation limits
In this instrument, a reference to the allocation limits is a reference to the requirement that the allocation of spectrum licences under this instrument must not result in a person, or relevant group of persons, having permission to use more spectrum in the sub-1 GHz band than the limit set out in section 14.
Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate parts of the spectrum in the sub-1 GHz band that, under existing spectrum licences and as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or relevant group of persons. See section 7 of the spectrum licence limits direction.
14 Allocation limits
(1) No person, or relevant group of persons, may, as a result of the allocation of spectrum licences under this instrument, use:
(a) more than an aggregate of 82 MHz of the sub-1 GHz band under spectrum licences in the major population area; or
(b) more than an aggregate of 92 MHz of the sub-1 GHz band under spectrum licences in the regional area.
(2) For the purposes of subsection (1), if:
(a) a person or relevant group of persons holds a relevant spectrum licence that authorises the operation of radiocommunications devices in one or more parts of the major population area (but not the entire major population area); and
(b) the population of that part of the major population area, or the aggregate population of those parts of the major population area, is insignificant;
the relevant spectrum licence is to be treated as if it did not apply in the major population area.
(3) For the purposes of paragraph (2)(b):
(a) the population of a part of the major population area is insignificant if, and only if, the population of that part of the major population area is less than 25% of the total population of the major population area determined in accordance with the most recent data in the HCIS – List of Population Data Document published by the ACMA on its website, as that document existed at the time the spectrum licence limits direction was made; and
(b) the aggregate population of parts of the major population area is insignificant if, and only if, the aggregate population of those parts of the major population area is less than 25% of the total population of the major population area determined in accordance with the most recent data in the HCIS – List of Population Data Document published by the ACMA on its website, as that document existed at the time the spectrum licence limits direction was made.
Note: The HCIS – List of Population Data Document may be accessed, free of charge, from the ACMA’s website at
Division 2 Associates, relevant group of persons and affiliations
15 Meaning of associate and relevant group of persons
(1) In this instrument, associate means:
(a) in relation to a person that is a body corporate:
(i) a director or secretary of the body; or
(ii) a related body corporate; or
(iii) a director or secretary of a related body corporate; or
(iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or
(b) in relation to a person that is an individual:
(i) the individual’s spouse; or
(ii) the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901; or
(iii) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares; or
(iv) a body corporate of which the individual is a director or secretary; or
(v) a body corporate that is a related body corporate in relation to a body corporate of which the individual is a director or secretary; or
(c) in relation to any person (the first person) – any other person (other than the Commonwealth when represented by the ACMA) who is party to a relevant agreement with the first person that either or both:
(i) is for the use by one party to the agreement of spectrum licensed to another party to the agreement under a spectrum licence for a part of the spectrum referred to in the re-allocation declaration;
(ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the re-allocation declaration.
(2) For paragraph (1)(c), a relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal, or partly formal and partly informal; and
(b) whether written or oral, or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
other than a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010.
(3) For paragraph (1)(c), a reference to part of the spectrum referred to in the re-allocation declaration is a reference to the 850/900 MHz band.
(4) In this instrument, relevant group of persons means either of the following:
(a) a person and all associates of that person; or
(b) subject to subsection (5) – any 2 or more groups referred to in paragraph (a) that have at least one member in common.
(5) For the purposes of paragraph (4)(b), an individual is taken not to be a member in common between 2 or more groups that are comprised of a person (the relevant person) and the associates of that relevant person where all of the following apply:
(a) the individual is providing services as a company secretary (the company secretarial services) to one or more related bodies corporate of the relevant person in each of the groups;
(b) the individual is providing the company secretarial services through a person or entity (the third party service provider) that:
(i) is not in any of the groups; and
(ii) carries on a business for the provision of professional services, including company secretarial services; and
(iii) has, in the ordinary course of carrying on that business, been separately and independently engaged by an entity within each of those groups, under a contract or other legally binding arrangement, to provide the company secretarial services;
(c) the individual is not, otherwise than by reason of providing the company secretarial services, an associate of any of the relevant persons;
(d) each of the related bodies corporate to which the individual is providing the company secretarial services is incorporated outside Australia.
16 Affiliation between applicants or bidders
Two applicants or bidders are affiliated if the applicants or bidders are in the same relevant group of persons.
Note: Paragraph 15(4)(b) and this section mean that 2 applicants or bidders are affiliated if they have an associate in common. However, see subsection 15(5).
17 Information relevant to considering whether applicants or bidders are affiliated
(1) When considering under this instrument whether 2 or more applicants or bidders are affiliated, the ACMA must have regard to:
(a) completed application forms; and
(b) updated application forms; and
(c) statutory declarations and statements given in accordance with this instrument.
(2) The ACMA may have regard to any other information that it considers relevant.
Part 3—Confidentiality
18 Meaning of confidential information
In this instrument, confidential information, in relation to an applicant or bidder, means:
(a) documents the applicant or bidder has given to the ACMA for the purposes of the auction; and
(b) information provided to the applicant under section 32, section 39, or section 49, or to the bidder under paragraphs 54(2)(d) and (e), for the purpose of participating in the auction; and
(c) a provisional start demand of the applicant; and
(d) a start demand of the bidder for a clock round of the primary stage; and
(e) a posted demand of the bidder for a clock round of the primary stage; and
(f) a bid made by the bidder in the auction; and
(g) a proposed bid by the applicant or bidder, or a bid under consideration by the applicant or bidder; and
(h) a proposed provisional start demand or proposed start demand of the applicant or bidder, or a proposed provisional start demand or proposed start demand under consideration by the applicant or bidder; and
(i) the bidding strategy of the applicant or bidder; and
(j) the amount the applicant or bidder is willing to pay for:
(i) a lot or combination of lots; or
(ii) a part or parts of the spectrum in the 850/900 MHz band; and
(k) information that, if disclosed, could be reasonably expected to affect or be capable of affecting:
(i) bids made or proposed to be made by another applicant or bidder; or
(ii) provisional start demands or proposed provisional start demands of another applicant or bidder; or
(iii) start demands or proposed start demands of another applicant or bidder; or
(iv) the bidding strategy of another applicant or bidder; and
(l) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the auction.
19 Obligation not to disclose confidential information
(1) Each of the following persons must not, either directly or indirectly, disclose confidential information of an applicant or bidder about the auction to any person:
(a) the applicant or bidder;
(b) a related person of the applicant or bidder who has knowledge of the confidential information;
(c) a contractor of an applicant or bidder who has knowledge of the confidential information.
(2) Subsection (1) does not prevent a person disclosing information about the auction:
(a) for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or
(b) for the purpose of obtaining finance to make a payment in relation to the auction; or
(c) to the ACMA; or
(d) for an applicant or bidder – to a related person of the applicant or bidder; or
(e) for a related person of an applicant or bidder – to the applicant or bidder, or to another related person of the same applicant or bidder; or
(f) for a contractor of an applicant or bidder – to the applicant or bidder, or to a related person of the same applicant or bidder; or
(g) for the purpose of announcing or publishing that the applicant or bidder is participating in the auction; or
(h) as authorised by this instrument; or
(i) as otherwise required by law.
Note: In some cases, the person to whom the information is disclosed may become a related person or contractor who is required to give a deed of confidentiality to the ACMA: see section 23.
(3) Subsection (1) does not prohibit a person disclosing information about the auction if:
(a) the information is already publicly available; and
(b) the information was not made publicly available because of a breach of this section.
20 Duration of confidentiality obligation
Section 19 applies to an applicant or bidder, a related person of the applicant or bidder, and a contractor of the applicant or bidder, until:
(a) the applicant, as a withdrawn applicant, is notified under section 73 that the applicant’s confidentiality obligation is at an end; or
(b) in relation to a bidder (whether or not a winning bidder) – the ACMA announces or publishes the information mentioned in subsection 79(1).
Note: The ACMA announces or publishes the information mentioned in subsection 79(1) only after winning bidders are notified in accordance with subsection 79(2).
21 Reporting breach of confidentiality
An applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, who:
(a) discloses confidential information in breach of section 19; or
(b) receives the confidential information of another applicant or bidder;
must report the disclosure or receipt in writing to the ACMA as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.
22 Notice of breach of confidentiality
(1) This section applies if the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, may have:
(a) disclosed confidential information in breach of section 19; or
(b) received confidential information as a result of a breach of section 19.
(2) In relation to the applicant or bidder whose confidential information has been disclosed, the ACMA must:
(a) tell the applicant or bidder, giving details of the matter; and
(b) ask the applicant or bidder to make submissions about the matter; and
(c) state a deadline for the receipt of submissions that is no more than 5 working days after the date of the request.
(3) If the ACMA forms the belief before the end of the auction period, the ACMA is not required to act under subsection (2) before the auction period ends, but must act under that subsection as soon as practicable after the auction period ends.
23 Deed of confidentiality required from related persons and contractors
(1) A related person of an applicant or bidder who has knowledge of confidential information of the applicant or bidder must give the ACMA a deed of confidentiality if the person is:
(a) an employee of the applicant or bidder; or
(b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.
(2) A contractor of an applicant or bidder who has knowledge of confidential information of the applicant or bidder must give the ACMA a deed of confidentiality.
(3) Subsection (2) does not apply to a contractor under a contract:
(a) for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or
(b) for the purpose of obtaining finance to make a payment in relation to the auction.
(4) If a person to whom paragraph (1)(a) or (1)(b), or subsection (2), applies receives knowledge of the applicant’s confidential information before the application deadline or new application deadline (if there is one), the person must give the ACMA the deed of confidentiality before the relevant deadline.
Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website: See paragraphs 29(1)(h) and 30(1)(k).
Part 4—Procedures before auction
Division 1 Preliminary
24 Auction manager
(1) The ACMA must, in writing, appoint a person (auction manager) to manage the auction.
(2) The person appointed as the auction manager must be:
(a) a member within the meaning of the ACMA Act; or
(b) a member of the ACMA staff; or
(c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the ACMA Act.
25 Application fee
Before it publishes a notice under subsection 29(1), the ACMA must, in writing, set a fee (application fee) to be paid by applicants.
26 Application fee not refundable except in certain circumstances
(1) Subject to subsection (2), an application fee paid by an applicant or bidder under this instrument is not refundable in any circumstances, including:
(a) if the applicant withdraws from the auction; or
(b) if the applicant or bidder is taken to withdraw from the auction; or
(c) if the applicant or bidder is not permitted to make a bid in the auction.
(2) An application fee paid by an applicant under this instrument is refundable if both the following occur:
(a) the ACMA varies a starting price under paragraph 43(1)(a); and
(b) the applicant withdraws its application before the extended eligibility deadline by giving the ACMA notice in writing.
(3) If subsection (2) applies in relation to an applicant, the ACMA must refund the application fee no later than 6 months after the applicant withdraws its application.
27 Application deadline and eligibility deadline
(1) Before it publishes a notice under subsection 29(1), the ACMA must, in writing, set a date and time (application deadline) before which:
(a) completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and
(b) the application fee must be paid to the ACMA.
(2) Before it publishes a notice under subsection 29(1), the ACMA must, in writing, set a date and time (eligibility deadline) before which:
(a) completed eligibility nomination forms must be received by the ACMA; and
(b) eligibility payments must be made to the ACMA, or deeds of financial security must be given to the ACMA, or a combination of both.
28 Starting prices, lot ratings and forms
(1) The ACMA must set the following amounts:
(a) the starting price for the lots of each product in the auction;
(b) the lot rating for the lots of each product in the auction;
(c) the set-aside price for set-aside lots of the 900 upper major population product and for set-aside lots of the 900 upper regional product.
Note: Paragraphs (a) and (c) relate to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act, and are disallowable under section 42 of the Legislation Act 2003.
(2) For the purposes of subsection (1)(c):
(a) the set-aside price for set-aside lots of the 900 upper major population product must be:
(i) at least 120% of the starting price for the lots of the 900 upper major population product; and
(ii) not greater than 130% of the starting price for the lots of the 900 upper major population product;
(b) the set-aside price for set-aside lots of the 900 upper regional product must be:
(i) at least 120% of the starting price for the lots of the 900 upper regional product; and
(ii) not greater than 130% of the starting price for the lots of the 900 upper regional product.
Note: Subsection (2) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
(3) After setting the amounts in subsection (1), the ACMA must approve the following forms:
(a) a form (application form) for applying to participate in the auction that complies with subsection (4);
(b) a form (deed of acknowledgement form) that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument;
(c) a form (deed of financial security form) for securing an applicant’s maximum eligibility points;
(d) a form (deed of confidentiality form) that includes a statement to the effect that the person giving the deed agrees not to disclose confidential information before section 19 ceases to apply to the person;
(e) one or more forms for the purposes of the following:
(i) section 35;
(ii) paragraph 38(6)(c);
(iii) section 50;
(iv) section 70.
(4) The application form must include a requirement for, and a guide to:
(a) identifying whether an applicant is a set-aside applicant; and
(b) if the applicant is a set-aside applicant – stating whether the set-aside applicant elects to take up a set-aside lot of both:
(a) the 900 upper major population product; and
(b) the 900 upper regional product.
Division 2 Advertising the auction
29 Notice advertising auction
(1) The ACMA must publish on its website a notice that:
(a) describes the parts of the spectrum to be auctioned; and
(b) gives a brief description of the way the auction will be conducted; and
(c) states that the auction will be conducted in accordance with this instrument; and
(d) invites persons to apply to the ACMA to take part in the auction; and
(e) states the application deadline; and
(f) states the eligibility deadline; and
(g) states that applications may only be withdrawn before the eligibility deadline or the extended eligibility deadline (if there is one); and
(h) states that the applicant information package for the auction can be obtained from the ACMA’s website at the electronic address given in the notice.
(2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website.
(3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.
30 Applicant information package
(1) The applicant information package must contain the following documents and information:
(a) the re-allocation declaration;
(b) the spectrum licence limits direction;
(c) the marketing plan;
(d) this instrument;
(e) a guide to the auction;
(f) the starting price for the lots of each product in the auction;
(g) the lot rating for the lots of each product in the auction;
(h) the set-aside price for set-aside lots of the 900 upper major population product, and the set-aside price for set-aside lots of the 900 upper regional product;
(i) the application form;
(j) the deed of acknowledgement form;
(k) the deed of confidentiality form;
(l) the amount of the application fee;
(m) the application deadline, and information about the circumstances in which there may be a new application deadline;
(n) each form approved by the ACMA for the purposes of the following:
(i) section 35;
(ii) paragraph 38(6)(c);
(iii) section 50;
(iv) section 70;
(o) the deed of financial security form;
(p) the eligibility deadline, and information about the circumstances in which there may be an extended eligibility deadline;
(q) advice that the eligibility deadline, or the extended eligibility deadline (if there is one), is the last time for withdrawal from the auction;
(r) the physical address for giving documents to the ACMA;
(s) the email address for giving documents to the ACMA.
(2) The applicant information package may also contain other information about the auction.
(3) The ACMA must publish the applicant information package on its website as soon as practicable after notice of the auction is published under subsection 29(1).
(4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.
Division 3 Application to participate in the auction
31 Making an application
(1) A person may apply to become registered as a bidder in the auction by:
(a) subject to subsection (2), giving the ACMA a completed application form; and
(b) giving the ACMA a deed of acknowledgement executed by the applicant; and
(c) giving the ACMA a deed of confidentiality executed by the applicant; and
(d) paying the application fee;
before the application deadline.
Note: For information on how an application fee must be paid, see section 10.
(2) If the applicant is a set-aside applicant, to apply to become registered as a bidder in the auction the person must give the ACMA a completed application form stating whether the person elects to take up a set-aside lot of both:
(a) the 900 upper major population product; and
(b) the 900 upper regional product.
(3) If one or more set-aside applicants give the ACMA a completed application form that, in each case, states that the set-aside applicant elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product:
(a) subsection 62(1) applies in relation to the auction; and
(b) each of those set-aside applicants is a set-aside participant.
(4) If no set-aside applicant gives the ACMA a completed application form that states that the set-aside applicant elects to take up a set-aside lot:
(a) subsection 62(2) applies in relation to the auction; and
(b) there are no set-aside participants.
(5) As soon as practicable after the application deadline, and at least 15 working days before the eligibility deadline, the ACMA must:
(a) approve a form (eligibility nomination form) that complies with subsection (6); and
(b) tell each applicant, in writing, how many set-aside participants there are (if any); and
(c) if there is only one set-aside participant – tell each applicant the identity of that set-aside participant;
(d) tell each applicant, in writing, the supply of:
(i) the 900 upper major population product; and
(ii) the 900 upper regional product; and
(e) give each applicant a copy of the eligibility nomination form; and
(f) give each applicant information about making an eligibility payment, or giving a deed of financial security, or both making an eligibility payment and giving a deed of financial security, for an applicant to secure its maximum eligibility points.
Note: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.
(6) The eligibility nomination form must include a requirement for, and a guide to:
(a) specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase, at the starting price for the lots of the product; and
(b) calculating and specifying the maximum eligibility points of an applicant based on those provisional start demands; and
(c) in relation to the lots of each product, other than:
(i) a 900 lower product; or
(ii) for a set-aside participant – a 900 upper product;
either:
(iii) not selecting a provisional minimum spectrum requirement; or
(iv) selecting 2 lots as the provisional minimum spectrum requirement;
for the lots of the product.
(7) After the application deadline, and no later than the eligibility deadline, an applicant must:
(a) give the ACMA a completed eligibility nomination form, which:
(i) specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and
(ii) specifies the maximum eligibility points of the applicant, based on those specified provisional start demands; and
(iii) in relation to the lots of each product, other than:
(A) a 900 lower product; or
(B) for a set-aside participant – a 900 upper product;
states that the applicant either:
(C) does not select a provisional minimum spectrum requirement; or
(D) selects 2 lots as the provisional minimum spectrum requirement;
for the lots of the product; and
(b) in accordance with section 42, do one of the following:
(i) make an eligibility payment to the ACMA; or
(ii) give the ACMA a deed of financial security; or
(iii) make an eligibility payment and give a deed of financial security to the ACMA.
Note: If the eligibility payment or deed of financial security, or both, is not for the amount calculated in accordance with section 42, that may have consequences for the applicant in the auction.
(8) Subject to Division 5, if an applicant fails to comply with subsection (7):
(a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or
(b) in any other case – the applicant is taken to have withdrawn its application.
(9) Subject to subsections 45(1), 46(2) and 46(4), an applicant may give the ACMA an updated, additional or replacement document:
(a) for a document mentioned in paragraph (1)(a), (1)(b) or (1)(c) – at any time until the application deadline, but not after the application deadline; or
(b) for a document mentioned in paragraph (7)(a) or, subject to section 42, paragraph (7)(b) – at any time until the eligibility deadline, but not after the eligibility deadline.
(10) If a deed of financial security (for subparagraph (7)(b)(ii) or (iii)) is given to the ACMA by email before the eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).
(11) If an applicant fails to comply with subsection (10):
(a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or
(b) in any other case – the applicant is taken to have withdrawn its application.
(12) If subsection (8) or (11) applies, the ACMA must, in writing:
(a) for a set-aside participant – tell the set-aside participant that they are not entitled to bid during the primary stage and the secondary stage; or
(b) in any other case – tell the applicant that they are taken to have withdrawn their application.
32 Initial auction information provided to applicants
After the application deadline, the ACMA must give each applicant the following:
(a) information about using the auction system;
(b) information about making entries in the auction system during the pre-bidding phase;
(c) information about making bids in the auction system during the primary stage, secondary stage and assignment stage.
33 Provisional start demand validity rules for application
For the purposes of the following:
(a) subparagraph 31(7)(a)(i);
(b) paragraph 38(7)(a);
(c) paragraph 46(2)(a);
(d) subparagraph 48(4)(a)(i);
a provisional start demand of an applicant, for lots of a product, is valid if both the following apply in relation to the provisional start demand:
(e) the total size of the sum of:
(i) the provisional start demand of the applicant for the lots of the product (the relevant product); and
(ii) if the relevant product is a major population product – the sum of the provisional start demands of the applicant for lots of each other major population product; and
(iii) if the relevant product is a regional product – the sum of the provisional start demands of the applicant for lots of each other regional lot; and
(iv) if the relevant product is a major population product and the applicant is a set-aside participant – 1 set-aside lot of the 900 upper major population product; and
(v) if the relevant product is a regional product and the applicant is a set-aside participant – 1 set-aside lot of the 900 upper regional product;
does not exceed the applicant’s allocation limits (when expressed in MHz); and
(f) the number of lots for the applicant’s provisional start demand for the product is not greater than the number of lots for the supply of the product.
Note 1: See section 7 of the spectrum licence limits direction.
Note 2: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.
34 Applicants to notify the ACMA if application information incorrect
(1) If an applicant knows that any of the information it has given to the ACMA for the purposes of its application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.
(2) The auction manager may correct information in an application if the auction manager is satisfied that the information is incorrect, such as it containing a clerical error or an obvious mistake or omission.
(3) However, after the application deadline, the auction manager cannot make changes to the following statements in an application:
(a) if, in its application, a set-aside applicant stated that it elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product – that statement;
(b) if, in its application, a set-aside applicant stated that it did not elect to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product – that statement.
(4) A statement in an application that is mentioned in subsection (3) is taken to be correct for all purposes.
Note: Before the application deadline, an applicant may give the ACMA a replacement application in accordance with subsection 31(9).
35 Applicant to make statutory declaration
(1) After the application deadline, the ACMA must:
(a) give each applicant details about the identity of all other applicants, and the persons identified in applications as the associates of the other applicants; and
(b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant and, if so, identifying the other applicant and giving details of the affiliation.
(2) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.
36 Failure to give statutory declaration
If an applicant does not give the ACMA a statutory declaration in accordance with section 35, the applicant is taken to have withdrawn its application.
Note: If an applicant that is taken to have withdrawn its application under this section is a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.
37 Procedure if ACMA satisfied applicants are affiliated
(1) If the ACMA is satisfied that two or more applicants are affiliated, the ACMA must, in writing:
(a) notify the affiliated applicants and tell them the basis on which the ACMA is satisfied the applicants are affiliated; and
(b) notify the affiliated applicants that to participate in the auction:
(i) each affiliated applicant must withdraw its application, and a new applicant must submit an application under section 38; or
(ii) each affiliated applicant, but one, must withdraw its application.
(2) Within 8 working days of the ACMA notifying the affiliated applicants under subsection (1), the applicants must notify the ACMA in writing which option under paragraph (1)(b) the applicants have decided to take.
(3) If the affiliated applicants do not notify the ACMA within those 8 working days, each of the affiliated applicants is taken to have withdrawn its application.
(4) If, within those 8 working days, some of the affiliated applicants withdraw their applications but more than one affiliated applicant does not, each of the remaining affiliated applicants is taken to have withdrawn its application.
(5) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (3) or (4).
Note: If an applicant that is taken to have withdrawn its application under subsection (3) or (4) is a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.
38 Requirements for new application
(1) If the members of a group of affiliated applicants notified by the ACMA under subsection 37(1) decide that a new applicant (new applicant) is to submit a new application, the new applicant must be a body corporate whose only members are one or more of those affiliated applicants.
(2) The new applicant must, within 8 working days of the ACMA notifying the affiliated applicants under subsection 37(1):
(a) give the ACMA a completed application form; and
(b) pay the application fee.
Note: For information on how an application fee must be paid, see section 10.
(3) If the ACMA receives a completed application form and application fee under subsection (2), the ACMA must give each applicant (including the new applicant) updated details about the identity of all other applicants, and the persons identified in applications as the associates of the other applicants.
(4) The updated information does not need to include those applicants who have already withdrawn.
(5) If:
(a) the new applicant is a set-aside applicant; and
(b) the completed application form given under subsection (2) states that the set-aside applicant elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product;
then:
(c) subsection 62(1), if it did not already apply, applies in relation to the auction; and
(d) the new applicant is a set-aside participant.
(6) An application is not valid unless the new applicant, no later than 3 working days after the ACMA gives the new applicant the updated information (or, if the ACMA agrees to a later time, the agreed time):
(a) gives the ACMA a deed of acknowledgement executed by the new applicant; and
(b) gives the ACMA a deed of confidentiality executed by the new applicant; and
(c) makes and gives the ACMA a statutory declaration that the new applicant is not affiliated with any other applicant mentioned in the updated information.
(7) The new applicant must, no later than the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case (or if the ACMA agrees to a later time, the agreed time):
(a) give the ACMA:
(i) a completed eligibility nomination form, which includes the matters set out in paragraph 31(7)(a); or
(ii) a completed updated eligibility nomination form, which includes the matters set out in subsection 46(2);
as appropriate; and
(b) in accordance with section 42, do one of the following:
(i) make an eligibility payment to the ACMA; or
(ii) give the ACMA a deed of financial security; or
(iii) make an eligibility payment and give a deed of financial security to the ACMA.
Note: If the eligibility payment or deed of financial security, or both, is not for the amount calculated in accordance with section 42, that may have consequences for the new applicant in the auction.
(8) If a deed of financial security (for subparagraph (7)(b)(ii) or (iii)) is given to the ACMA by email before the time specified in subsection (7), the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).
(9) Subject to Division 5, if the new applicant fails to comply with subsection (7) or subsection (8):
(a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or
(b) in any other case – the new applicant is taken to have withdrawn its application.
(10) If, at any time before the new applicant is registered as a bidder, the ACMA is satisfied that the new applicant is affiliated with one or more other applicants who have not withdrawn their applications (including another applicant who has applied under this section), the new applicant and each of the other applicants is taken to have withdrawn its application.
(11) The ACMA must tell an applicant in writing:
(a) for a set-aside participant – that under paragraph (9)(a) it is not entitled to bid during the primary stage and the secondary stage; or
(b) for a new applicant – that it is taken to have withdrawn its application under paragraph (9)(b) or subsection (10) or its application is not valid under subsection (6); or
(c) for any applicant – that it is taken to have withdrawn its application under subsection (10).
Note: If subsection (10) applies to a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.
39 Initial auction information provided to new applicants
After an application is made under section 38, the ACMA must give the new applicant the following:
(a) information about using the auction system;
(b) information about making entries in the auction system during the pre-bidding phase;
(c) information about making bids in the auction system during the primary stage, secondary stage and assignment stage.
40 Compliance or non-compliance with allocation limits procedures – effect on supply of 900 upper products
Application of section
(1) If:
(a) an applicant is a set-aside participant; and
(b) the applicant is taken to have withdrawn its application under section 36, section 37 or subsection 38(10); and
(c) at the time the applicant is taken to have withdrawn its application, the ACMA has not set an extended eligibility deadline under paragraph 43(3)(b);
this section applies.
(2) If:
(a) the ACMA receives an application under subsection 38(2); and
(b) the applicant is a set-aside participant; and
(c) the applicant is not taken to have withdrawn its application under subsection 38(10); and
(d) at the time the ACMA receives the application, the ACMA has not set an extended eligibility deadline under paragraph 43(3)(b);
this section applies.
Effect on supply of 900 upper products
(3) If this section applies, the ACMA may vary the eligibility deadline (varied eligibility deadline).
(4) The varied eligibility deadline must be later than:
(a) if the ACMA makes its decision under subsection (3) before the eligibility deadline – the eligibility deadline; or
(b) if the ACMA makes its decision under subsection (3) after the eligibility deadline – the day on which the ACMA made its decision under subsection (3).
(5) If this section applies because of subsection (1), the applicant that is taken to have withdrawn its application ceases to be a set-aside participant.
(6) If, at the application deadline, there was at least one set-aside participant but, as a result of the operation of subsection (5), there are no set-aside participants, then from the time the last applicant is taken to have withdrawn its application:
(a) subsection 62(1) ceases to apply in relation to the auction; and
(b) subsection 62(2) applies in relation to the auction; and
(c) there are no set-aside participants.
(7) If the ACMA varies the eligibility deadline under subsection (3), the ACMA must:
(a) approve a form (varied eligibility nomination form) that complies with subsection (8); and
(b) tell each applicant, in writing, how many set-aside participants there are (if any); and
(c) if there is only one set-aside participant – tell each applicant the identity of that set-aside participant;
(d) tell each applicant, in writing:
(i) what the supply of the 900 upper major population product is; and
(ii) what the supply of the 900 upper regional product is; and
(e) give each applicant a copy of the varied eligibility nomination form.
Note: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.
(8) The varied eligibility nomination form must include a requirement for, and a guide to:
(a) specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase, at the starting price for the lots of the product; and
(b) calculating and specifying the maximum eligibility points of an applicant based on those provisional start demands; and
(c) in relation to the lots of each product, other than:
(i) a 900 lower product; or
(ii) for a set-aside participant – a 900 upper product;
either:
(iii) not selecting a provisional minimum spectrum requirement; or
(iv) selecting 2 lots as the provisional minimum spectrum requirement;
for the lots of the product.
(9) If the ACMA varies the eligibility deadline under subsection (3), then in this instrument:
(c) the assignment of frequency ranges to each set-aside lot (if any); and
(d) allocation of the downshift metropolitan lot and the downshift regional lot.
2 Interpretation
In this Schedule:
assignment bidder, for an assignment round, means a person specified in subclause 4(1).
assignment round means a round for the making of assignment bids.
list of frequency range options includes a set of frequency range options.
results: see clause 12.
unallocated lot means
(a) for the 850 major population product, the 850 regional product, or a 900 lower product – a lot of the product that was not allocated in the primary stage or the secondary stage; or
(b) for a 900 upper product – a lot of the product, other than a set-aside lot, that was not allocated in the primary stage or the secondary stage.
winning assignment bid: see clause 7.
Note: For the definition of size and total size, see subsection 5(3).
Part 2 Arrangements for assignment stage
3 Schedule for assignment rounds
(1) After the completion of the secondary stage (or the primary stage, if there is no secondary stage), the auction manager must announce:
(a) the anticipated start time and end time of each assignment round; and
(b) the product or products that will be the subject of each assignment round.
(2) There must be at least 48 hours between the completion of the secondary stage (or primary stage, if there is no secondary stage), and the start of the first assignment round.
Note: See Division 3 of Part 5 of this instrument for things that may need to happen between the completion of the primary stage and secondary stage (if any), and the start of the first assignment round.
(3) Assignment rounds must start and end between 9:00 am and 5:00 pm on working days.
(4) The auction manager must prepare an anticipated schedule for the assignment rounds between those times.
(5) There is no maximum or minimum length for an assignment round, and no maximum or minimum length for the interval between two rounds.
(6) The auction manager must set the order in which the products are subjects of assignment rounds.
(7) Two or more products may be the subject of a single assignment round.
(8) A product must not be the subject of more than one assignment round.
(9) Despite anything else in this Schedule, a 900 lower product must not be the subject of an assignment round.
(10) This clause is subject to subclause 4(8).
Part 3 Bidding in the assignment stage
4 Frequency range options in assignment rounds
Generally
(1) Bidding in an assignment round is only open to:
(a) each bidder who was allocated in the primary stage at least one lot of a product that is the subject of the assignment round; and
(b) each bidder who was allocated in the secondary stage one lot of a product that is the subject of the assignment round; and
(c) if the 900 upper major population product is the subject of the assignment round – each set-aside participant; and
(d) if the 900 upper regional product is the subject of the assignment round – each set-aside participant;
(assignment bidders).
(2) For each product, other than a 900 lower product, the auction manager must determine a list of frequency range options available to each assignment bidder so that:
(a) the frequency ranges included within each option for an assignment bidder are a pair of contiguous frequency ranges, each frequency range corresponding in bandwidth to half of:
(i) the total size of the lots of the product that the assignment bidder was allocated in the primary stage; and
(ii) if the assignment bidder was allocated a lot of the product in the secondary stage – the size of that lot; and
(iii) if the applicant is a set-aside participant and the product is the 900 upper major population product – the size of 1 set-aside lot of the 900 upper major population product; and
(iv) if the applicant is a set-aside participant and the product is the 900 upper regional product – the size of 1 set-aside lot of the 900 upper regional product; and
(b) for each option in the list of frequency range options available to an assignment bidder, there exists at least one frequency range option for every other assignment bidder such that:
(i) each assignment bidder’s frequency range complies with paragraph (a); and
(ii) none of the frequency ranges overlap; and
(c) subclause (3) is satisfied.
Note: Where a set-aside participant has been allocated a set-aside lot of the 900 upper major population product and a set-aside lot of the 900 upper regional product, a different frequency range may be assigned to each set-aside lot as a result of this Schedule and the assignment bids made.
Example: A set-aside participant is allocated a set-aside lot of the 900 upper major population product and a set-aside lot of the 900 upper regional product, and no other lots of any product. As a result of this Schedule and the assignment bids made:
(a) the set-aside lot of the 900 upper major population product is assigned the frequency ranges 895 MHz to 900 MHz and 940 MHz to 945 MHz; and
(b) the set-aside lot of the 900 upper regional product is assigned the frequency ranges 910 MHz to 915 MHz and 955 MHz to 960 MHz.
Contiguity between 900 lower products and 900 upper products allocated to an assignment bidder
(3) If an assignment bidder has been allocated:
(a) both:
(i) the one lot of the 900 lower major population product; and
(ii) at least one lot of the 900 upper major population product (whether or not the lot is a set-aside lot); or
(b) both:
(i) the one lot of the 900 lower regional product; and
(ii) at least one lot of the 900 upper regional product (whether or not the lot is a set-aside lot);
then the auction manager must ensure that:
(c) if paragraph (a) applies – every frequency range option available to the assignment bidder for the 900 upper major population product includes:
(i) the frequency range 895 MHz to 900 MHz; and
(ii) the frequency range 940 MHz to 945 MHz; and
(d) if paragraph (b) applies – every frequency range option available to the assignment bidder for the 900 upper regional product includes:
(i) the frequency range 895 MHz to 900 MHz; and
(ii) the frequency range 940 MHz to 945 MHz.
Where one assignment round deals with more than one product
(4) If an assignment bidder is participating in an assignment round for two or more products, the auction manager must determine a list of frequency range options available to that bidder that deals with the products as a group, providing the requirements of subclauses (2) and (3) are met for each individual product in the group.
Where assignment round is unnecessary
(5) If, for an assignment round for a product, there is only one frequency range option available to each assignment bidder that is participating in the assignment round:
(a) subject to subclause (8), no assignment round for the product needs to be conducted; and
(b) this Schedule applies as if:
(i) subject to subclause (8), an assignment round for the product was conducted; and
(ii) each assignment bidder made an assignment bid with a bid price of zero for the only frequency range option available to the bidder.
Schedule of assignment rounds
(6) At least 24 hours before the start of the first assignment round, the auction manager must provide each assignment bidder participating in the assignment stage with the list of frequency range options available to the bidder in each of the assignment rounds for:
(a) the lots of a product that were allocated to the bidder in the primary stage or secondary stage; and
(b) if the assignment bidder is a set-aside participant and the assignment round is for the 900 upper major population product – 1 set-aside lot of the 900 upper major population product; and
(c) if the assignment bidder is a set-aside participant and the assignment round is for the 900 upper regional product – 1 set-aside lot of the 900 upper regional product.
(7) If subclause (5) applies in relation to a product, the auction manager must, at least 24 hours before the start of the first assignment round, inform each assignment bidder that is participating in the assignment round for that product;
(a) that no assignment round for the product needs to be conducted; and
(b) of the only frequency range option available to the bidder for that product; and
(c) that, for the purposes of this Schedule, the assignment bidder is taken to have made an assignment bid with a bid price of zero for that frequency range option.
(8) If subclause (5) applies in relation to each product (other than the 900 lower products):
(a) despite paragraph (5)(a) and subparagraph (5)(b)(i), one assignment round is conducted for all products (other than the 900 lower products); and
(b) that assignment round is scheduled in accordance with clause 3; and
(c) for each product, no assignment bidder who is participating in the assignment round in relation to that product may make an assignment bid other than the bid mentioned in subparagraph (5)(b)(ii).
Note: Assignment bidders will not use the auction system to make assignment bids during the assignment round mentioned in subclause (7). In this case, the assignment price for all bidders will be zero.
5 Assignment bids
(1) An assignment bid consists of:
(a) the frequency range option that is being bid on; and
(b) a bid price for that option that is a multiple of 1,000.
Note: If an assignment round is for two or more products, the frequency range option that is being bid on applies in relation to each of those products.
(2) An assignment bidder:
(a) may, for each option in the list of frequency range options provided to the bidder by the auction manager, make a single assignment bid on that option; and
(b) must not make an assignment bid on a frequency range that is not in the list of frequency range options.
Note: See subclauses (5) and (6) for when an assignment bid is taken to be made.
(3) Except where subsection 64(1) or 64(2) applies, an assignment bidder’s assignment bid in an assignment round is taken to have been made when the bid has passed data validation checks that are performed by the auction system.
Note: Subsection 64(1) allows the auction manager to permit an assignment bid to be made other than by using the auction system, in certain circumstances. Subsection 64(2) allows the auction manager to permit an assignment bid to be made after an assignment round has ended, in certain circumstances.
(4) An assignment bidder may change, delete or replace an assignment bid in the auction system during an assignment round as often as desired, subject to the data validation checks performed by the auction system. The assignment bid that is treated as binding for an assignment bidder is the assignment bid in the auction system at the end time of the assignment round.
Note: An assignment bidder may also be taken to make an assignment bid in accordance with section 64, or subclauses (5) or (6). See also subclause 4(7).
(5) In an assignment round, if there is a frequency range option in the list of frequency range options for an assignment bidder on which:
(a) no assignment bid is made by the bidder; or
(b) the bidder made an invalid assignment bid;
the assignment bidder is taken to have made an assignment bid on that frequency range option with a bid price of zero dollars.
(6) In any assignment round, if an assignment bidder does not make an assignment bid, the bidder is taken to have made an assignment bid on each frequency range option in the list of frequency range options for the bidder, with a bid price of zero dollars.
6 Validity of assignment bids
An assignment bid is valid if all of the following apply in relation to the bid:
(a) except where subsection 64(2) applies, the assignment bid is received by the auction system between the start time and the end time of the assignment round for a product or group of products;
(b) the assignment bid is for a frequency range in the list of frequency range options provided to the assignment bidder who made the bid;
(c) the bid price is a multiple of 1,000.
Note: Subsection 64(2) allows the auction manager to permit an assignment bid to be made after an assignment round has ended, in certain circumstances.
Part 4 Determining winning assignment bids and assignment prices
7 Determination of winning assignment bids
(1) After an assignment round has ended, the auction manager must tell each assignment bidder in the round its winning assignment bid.
(2) The winning assignment bids for an assignment round must be a combination of valid assignment bids such that:
(a) only one assignment bid is selected from each assignment bidder for the assignment round; and
(b) the frequency ranges included in any pair of winning assignment bids for a product, or group of products, do not overlap.
(3) Subject to subclause (4), the winning assignment bids are the assignment bids in the combination of valid assignment bids that:
(a) complies with subclause (2); and
(b) maximises the sum of the bid prices in the assignment bids
(4) If more than one combination of valid assignment bids (valid combinations) satisfies subclause (3), the winning assignment bids are the assignment bids in the valid combination selected by pseudorandom process from all those valid combinations.
Note: This clause relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
8 Assignment of frequencies and determination of assignment prices
Generally
(1) After the end of an assignment round, the auction manager must tell each assignment winner in the assignment round its assignment price for the frequency range assigned to the lots of the product.
(2) If there is only one assignment bidder in an assignment round, then for that bidder the assignment price for a frequency range for the product the subject of that assignment round is zero.
(3) If there is more than one assignment bidder in an assignment round, then for each bidder the assignment price for a frequency range for the product the subject of that assignment round is worked out in accordance with subclauses (4) to (7).
Assignment price where more than one assignment bidder in an assignment round
(4) For an assignment bidder, the assignment price for a frequency range must be no more than the bid price in the assignment bid for that frequency range made by that winner.
(5) For an assignment bidder, the assignment price for a frequency range may be zero.
(6) Subject to subclause (4), the set of assignment prices in an assignment round must be such that:
(a) there is no alternative assignment bidder, or group of assignment bidders, who (based on their assignment bids) would pay more than any assignment winner or group of assignment winners for the assignment round; and
(b) if more than one set of assignment prices satisfies paragraph (a) – the sum of the assignment prices is minimised; and
(c) if more than one set of assignment prices satisfies paragraphs (a) and (b) – the set of assignment prices is the solution to the formula in subclause (7).
(7) For paragraph (6)(c), the formula is:
subject to satisfying paragraphs (6)(a) and (6)(b);
where:
| is a set of assignment prices. |
| is the index of each assignment bidder (j) in the set of all assignment bidders participating in the assignment round (J). |
| is the set of prices the assignment bidders’ assigned lots would have had at the starting prices for the lots. |
| is the set of Vickrey prices for the assignment bidders, the price for each bidder j being: (a) the sum of bid prices for the combination of assignment bids that would have been selected under subclause 7(3) if bidder j had made assignment bids of zero dollars for every frequency range option; less (b) the sum of bid prices for all other winning assignment bids in the assignment round. |
Note: For starting prices, see paragraph 28(1)(a) or 43(1)(a).
Assignment winners and total assignment price
(8) An assignment bidder who has assignment prices for winning assignment bids in an assignment round is an assignment winner in the assignment stage for an assignment of a frequency range, or frequency ranges, to lots of a product, or group of products.
(9) The total assignment price for assignment of a frequency range, or frequency ranges, to lots of a product, or group of products, in the assignment stage for an assignment winner is the amount equal to the sum of all the assignment prices for the assignment winner that are mentioned in subclause (2) or (3), and in clause 9.
(10) The assignment prices calculated under subclause (6) must be rounded to the nearest thousand.
Note: This clause relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
9 Assignment of frequencies for 900 lower products
If a bidder was allocated the lot of a 900 lower product in the primary or secondary stage:
(a) immediately before the first assignment round, the lot is assigned the frequency ranges:
(i) 890 MHz to 895 MHz; and
(ii) 935 MHz to 940 MHz; and
(b) that bidder is an assignment winner for the lot of that product; and
(c) the assignment price for that lot is zero.
Note: Paragraph (c) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
Part 5 Allocation of downshift spectrum
10 Allocation of downshift spectrum
(1) If a bidder was allocated the lot of the 900 lower major population product in the primary or secondary stage, then, immediately before the first assignment round, the downshift metropolitan lot is allocated to that bidder.
Note: In accordance with the marketing plan, a licence for the downshift metropolitan lot will be issued to the relevant assignment winner as a separate spectrum licence to any other spectrum licence issued to that assignment winner as a result of this instrument.
(2) If a bidder was allocated the lot of the 900 lower regional product in the primary or secondary stage, then, immediately before the first assignment round, the downshift regional lot is allocated to that bidder.
Note: In accordance with the marketing plan, a licence for the downshift regional lot will be issued to the relevant assignment winner as a separate spectrum licence to any other spectrum licence issued to that assignment winner as a result of this instrument.
(3) For the avoidance of doubt, the operation of this clause does not affect any amount any person has to pay in accordance with this instrument.
11 Downshift spectrum not allocated
(1) If the lot of the 900 lower major population product is an unallocated lot, then both of the following parts of the spectrum in the downshift metropolitan area are taken to be unallocated, and section 80 applies to them:
(a) 824 MHz to 825 MHz; and
(b) 869 MHz to 870 MHz.
(2) If the lot of the 900 lower regional product is an unallocated lot, then both of the following parts of the spectrum in the downshift regional area are taken to be unallocated, and section 80 applies to them:
(a) 824 MHz to 825 MHz; and
(b) 869 MHz to 870 MHz.
(3) For the avoidance of doubt, the operation of this clause does not affect any amount any person has to pay in accordance with this instrument.
(4) In this clause:
downshift metropolitan area has the meaning given by subsection 5(1) of the marketing plan.
downshift regional area has the meaning given by subsection 5(1) of the marketing plan.
Part 6 Bringing the assignment stage to an end
12 Results of the assignment stage
(1) After the end of all assignment rounds, the auction manager must tell each assignment winner, in writing:
(a) the frequency ranges assigned to:
(i) the lots of each product that were allocated to the assignment winner in the primary stage or secondary stage (if any); and
(ii) if the assignment winner is a set-aside participant – the winner’s set-aside lots; and
(b) the assignment price for each such frequency range;
. (results).
(2) After the end of all assignment rounds, if subclause 10(1) applies in relation to an assignment winner, the auction manager must tell the assignment winner, in writing, that it has been allocated the downshift metropolitan lot.
(3) After the end of all assignment rounds, if subclause 10(2) applies in relation to an assignment winner, the auction manager must tell the assignment winner, in writing, that it has been allocated the downshift regional lot.
13 End of the assignment stage
The assignment stage is complete when the auction manager has, under clause 12:
(a) notified all assignment winners of the results of every assignment round; and
(b) if subclause 10(1) applies in relation to an assignment winner – notified that assignment winner that it has been allocated the downshift metropolitan lot; and
(c) if subclause 10(2) applies in relation to an assignment winner – notified that assignment winner that it has been allocated the downshift regional lot.
Schedule 5─Payment of balance of the winning price greater than zero, and issue of spectrum licences
(subparagraphs 10(4)(b)(i) and 10(4)(c)(i), sections 78 and 80, paragraphs 85(1)(e) and 86(a))
Part 1 Application and interpretation
1 Application of Schedule
This Schedule applies to the balance of a winning price by a winning bidder that is greater than zero.
Note 1: Paragraph 294(1)(b) of the Act provides that the ACMA may, by written instrument, make determinations specifying the times when spectrum access charges are payable.
Note 2: This Schedule is made under section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.
Note 3: For information on how an amount must be paid, see section 10.
2 Interpretation
In this Schedule, a winning bidder is a reference to a winning bidder that has a balance of the winning price that is greater than zero.
Note 1: For the definition of winning price, see subsection 75(1).
Note 2: For the definition of balance of the winning price, see subsection 75(2).
Part 2 Payment of winning price
3 Payment of balance of winning price
(1) The ACMA must notify a winning bidder, in writing, of the following:
(a) the winning price for the winning bidder;
(b) the effect on the winning price of any eligibility payments made under subsection 31(7), 38(7) or 48(4), in accordance with section 42, or of an additional eligibility payment made under subsection 46(4) for the purposes of section 42;
(c) that the balance of the winning price must be paid in full;
(d) the date by which the balance of the winning price must be paid to the ACMA.
(2) For paragraph (d), the date must be at least 20 working days after the ACMA notifies the winning bidder under subclause (1).
(3) If the ACMA becomes aware that a notice under subclause (1) contains a material error, the ACMA must give the winning bidder a revised notice.
(4) The ACMA must give a notice to a winning bidder under subclause (1) no later than 1 June 2024.
Note: A revised notice under subclause (3) may be given after 1 June 2024.
Part 3 Issue of spectrum licences
4 Issue of spectrum licences
If a winning bidder pays the balance of the winning price in accordance with the notice given under subclause 3(1), the winning bidder is entitled to be issued:
(a) a spectrum licence for each part of the spectrum assigned to the lots, other than the downshift metropolitan lot and the downshift regional lot, allocated to the bidder; and
(b) if the bidder was allocated the downshift metropolitan lot – a spectrum licence for the downshift metropolitan lot; and
(c) if the bidder was allocated the downshift regional lot – a spectrum licence for the downshift regional lot.
Note 1: In accordance with the marketing plan, a spectrum licence for the downshift metropolitan lot, and a spectrum licence for the downshift regional lot, will be issued to the relevant winning bidder as a separate spectrum licence to any other spectrum licence issued to that winning bidder as a result of this instrument.
Note 2: For the issue of spectrum licences, see section 62 of the Act.
5 Default
If a winning bidder does not pay the balance of the winning price in accordance with the notice given under subclause 3(1):
(a) spectrum licences are not allocated to the winning bidder under this instrument; and
(b) the allocation of spectrum licences in accordance with this instrument to other bidders is not affected; and
(c) section 80 applies to each lot (and associated spectrum assigned to each lot), including the downshift metropolitan lot and the downshift regional lot, that, but for this subclause, would have been included in a spectrum licence allocated to the winning bidder.
Note: See section 85 for when certain breaches of this instrument have occurred, and section 89 in relation to other rights of the ACMA and the Commonwealth.
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